# Petition — Banta v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1782%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1977 - **Citation:** 434 U.S. 819 ## Text Suprema Court, U. S. ~m FILE D APR 28 j977 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1976 No. ......... 76-1502 EDWIN DAVID BANTA and GEORGE HOHMANN, Petitioners, Vv. UNITED STATES OF AMERICA and FIREFIGHTERS INSTITUTE FOR RACIAL EQUALITY, et al., Respondents. PETITION FOR A WRIT OF CERTIORARI To the United States Court of Appeals | for the Eighth Circuit JOHN H. GOFFSTEIN Of Counsel BARTLEY, GOFFSTEIN, BOLLATO & LANGE 130 South Bemiston Avenue Clayton, Missouri 63105 mM TS V\ St. Louis Law Printing Co., Inc., => Street 63101 314-231-4477 INDEX “eee eneeneeeneeeeneeneeeeeeneeneneeeeeneeneeeeee ee ee ee Opinion of the Court of Appeals ................... Reasons for Granting the Writ ..................4.. The Petition presents an important unresolved is- sue of constitutional and statutory interpretation affecting every state and political subdivision which is an “Employer” within the meaning of Title VII The failure of the Court of Appeals to consider the constitutional issue raised on appeal is such a departure from the accepted and usual course of ju- dicial proceedings as to call for the exercise of the Supreme Court's power of supervision ......... The decision of the Court of Appeals is in conflict with the EEOC Guidelines on Employee Selection Procedures and the avowed purpose of Congress in enacting 42 U.S.C. §2000e-2(h) as recognized by this Court in Griggs v. Duke Power Co., of al- lowing rather than discouraging the use of profes- sionally developed ability tests ............... 12 Appendix: I. Opinion and Judgment, United States Court of Appeals for the Eighth Circuit ............... A-l Il. Order, United States Court of Appeals for the Eighth Circuit (denying Petition of Intervenors for Rehearing) III. Order, United States Court of Appeals for the Eighth Circuit (denying Petition of City of St. Louis ES cae Bae ee eo A-21 IV. Order and Memorandum, United States District Court for the Eastern District of Missouri ...... A-22 V. Nune Pro Tunc Order, United States District Court for the Eastern District of Missouri ........... A-51 VL. Decision, State Board of Mediation, State of Mis- Be 8e6060 cbvtbbnawededesecidicateniaca A-58 Cases Cited Aetna Insurance Co. v. Eisenberg, 294 F.2d 301 (8th ED Bt eae nae ih ie a ag 13 Albermarle Paper Co. v. Moody, 422 U.S. 405 (1975)... 16 oe v. Gilles Cotting, Inc., 504 F.2d 1255 (4th Cir. Deceeses , bed06N6900466606 bedensiasbécBeéce 14 Bridgeport Guardians v. Civil Service Commission, 462 F.2d 1333 (2nd Cir., 1973) .................... 17,19 Casteneda v. Partida, — U.S. —, 45 U.S. Law Ss. —, S. Week 4 EE Sev ticeccadsctcsdenic. 7 oa 10 Castro v. Beecher, 459 F.2d 725 (ist Cir., 1972) ...... 16 Dandridge v. Williams, 397 U.S. 471 I re et 12 Davis v. County of Los Angeles, — F.2d —, 13 FEP Cases 1217 (9th Cir., 1976)... 2.66 ee eee 11 Douglas v. Hampton, 512 F.2d 976 (D.C. Cir., 1975)... 17 EEOC v. Detroit Edison, 515 F.2d 301 (6th Cir., 1975).. 16 Espinoza v. Farah Manufacturing Co., 414 U.S. 86 (1973) 17 Ex Parte Virginia, 100 U.S. 339 (1880) .......-..+.-: 9 Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) ........--- 8, 13 Gilbert v. General Electric Co., — U.S. —, 13 FEP Cases RD GD ccc ucedeseccccccceccvceseccceveces 17 Griggs v. Duke Power Co., 401 U.S. 424 (1971). . 15, 16, 17, 22 Hazelwood School District v. United States, — U.S. —, 45 U.S. Law Week 3463 (January 11, 1977) ........-- 9 Hormel v. Helvering, 312 U.S. 552 (1941) ....-.-.--- 13 Jaffke v. Dunham, 352 U.S. 280 (1957) ........--+55- 12 Johnson v. U.S., 434 F.2d 340 (8th Cir., 1970) ........ 13 K-2 Ski Co. v. Head Ski Co., Inc., 506 F.2d 471 (9th Ci, BEEP a cccenccesecoccesccceuceccenccccces 14 Katzenbach v. Morgan, 384 U.S. 641 (1966) ......... 9 League of United Latin American Citizens v. City of Santa Ana, — F. Supp. —, 13 FEP Cases 1019 (C.D. — © A Prrry TeET Tee 11 Mieth v. Dothard, — F. Supp. —, 13 FEP Cases 1412 (M.D. Ala., 1976), probable jurisdiction noted — U.S. —, 45 U.S. Law Week 3399 (Nov. 30, 1976) ....... 11 National League of Cities v. Usery, 426 U.S. 833 MOD voc iccccceccccccescceccsesoccccsccs 8, 13,14 O'Neill v. U.S., 411 F.2d 139 (3rd Cir., 1969) ........ 14 iv Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 (Sth Cir., 1974) ...... Sri 16 Rogers v. International Paper Co., 510 F.2d 1340 (8th Perr re 16 Shield Club v. City of Cleveland, — F. Supp. —, 13 FEP Cases 1373 (N.D. Ohio, 1976) ..............0000. 10 St. Louis Fire Fighters Ass’n Local No. 73 v. City of St. Louis, unpublished opinion of Missouri State Board of Mediation (Feb. 23, 1977) .........cccecccecvces 5, 22 Standard Accident Insurance Co. v. Roberts, 132 F.2d 794 Cis, IBGE 2... sc cccsescevecnebeneeeee 13 Tiedeman v. Chicago, Milwaukee, St. Paul and Pac. R. Co., 513 F.2d 1267 (8th Cir., 1975) .............. 12 U. S. v. City of Chicago, — F.2d —, 14 FEP Cases 462 (FR Ce, WTI) 20 cv ccvececsecedsauneeeue 11 U. S. v. Georgia Power Co., 474 F.2d 906 (Sth Cir., 1973) 16 Village of Arlington Heights v. Metropolitan Housing De- velopment Corp., — U.S. —, 45 U.S. Law Week 4073 Gam. 08, BOFF) .. vcccccccceccovsescunnee 14 Vulcan Society v. Civil Service Commission, 490 F.2d 387 ke Pe 16 Washington v. Davis, 426 U.S. 229 GOVE cccctccsicenenateen 9, 10, 13, 14, 16, 17, 18, 19 Constitutional and Statutory Provisions Cited Te 3, 8,9 Fourteenth Amendment ................. 3, 5, 8,9, 10, 11 58 USL. SUSIE)... cvcccccecccscnenea 2 TT v a Nn ccovesceseees i, cc ccecgcasecvoccces 4, 5, 10, 11 ee 4,5, 10 15 42 US.C. $2000e et seq. ... 5.6. - ee cece cece eres 3,4 Other Materials Cited 29 C.F.R. §1607.1 et seq., Equal Employment Opportu- nity Commission (EEOC) “Guidelines on ae 7 Selection Procedures” ........-- ss secure . 17, 18, 41 Fed. Reg. 29016 et seq., Equal Employment Oppor- tunity Coordinating Council (EEOCC) “Uniform Guide- lines on Employee Selection Procedures” ....... 17, 18, 22 Standards for Educational and Psychological Tests and Manuals (American Psychological Association, 1966). .7, 20 Standards for Educational and Psychological Tests (Amer- ican Psychological Association, BEEP Séceccoecceces 20 9 Moore's Federal Practice €204.11[13] (2nd Ed., 1975) 13 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1976 EDWIN DAVID BANTA and GEORGE HOHMANN, Petit UNITED STATES OF AMERICA and FIREFIGHTERS INSTITUTE FOR RACIAL EQUALITY, et al. Respondents. PETITION FOR A WRIT OF CERTIORARI To the United States Court of Appeals for the Fighth Circuit Petitioners Edwin David Banta and George Hohmann, In- tervenors below, pray that a Writ of Certiorari issuc to review the judgment and opinion of the United States Court of Appeals for the Eighth Circuit entered on February 2, 1977. The unreported opimon of the Court of Appeals is reprinted in the Appendix at pp. 1-19. The Order of the Court of nemeste Gunsten Gathenee? Patten Gr Gehanties of te Ge — Alternative for Rehearing En Banc is reprinted in the Appendix at p. A 20. The Order of the Court of Appeals denying the Petition of Defendant-Appellee City of St. Louis for Rehearing is reprinted in the Appendix at p. A 21. The opinion of the United States District Court for the Eastern District of Missouri is reported at 410 F. Supp. 948 and is reprinted in the Appendix at p. A 23. The unreported Order of the District Court is reprinted in the Appendix at p. A 22 and the District Court's “Nunc Pro Tunc Order” is re- printed in the Appendix at p. A 51. The judgment of the Court of Appeals was entered on Febru- ary 2, 1977. Petitioners’ timely Petition for Rehearing along with that of the City of St. Louis were denied on February 25, 1977. Jurisdiction is invoked under 28 U.S.C. § 1254(1). QUESTIONS PRESENTED Whether Title VII of the Civil Rights Act of 1964, as ap- plied to the States and their political subdivisions by the Equal Employment Opportunity Act of 1972 mandating the “disparate ” sect of diecriminati ber than he “7 net die Steet’ toe 9 iste legislation” within the ing of Section Five of the Fourteenth Amendment? Whether the Court of Appeals correctly decided that it need not consider Intervenors’ arguments based on constitutional issues that were not raised in the District Court where those arguments were asserted in support of a favorable lower court ruling and where there were intervening decisions of the Su- preme Court which arguably changed the state of the law? = = Whether the decision of the Court of Appeals, creating its own standard for employment test validity, conflicts with the EEOC Guidelines on Employee Selection Procedures and with the Congressional intent expressed in 42 U.S.C. § 2000e-2(h), as recognized in Griggs v. Duke Power Co., of allowing rather than discouraging the use of professionally developed ability tests? CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The pertinent sections of the Constitution of the United States provide: Tenth Amendment: The powers not delegated to the United States by the Con- stitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Fourteenth Amendment: Section 1. . . . No State shall . . . deny to any person within its jurisdiction the equal protection of the laws. Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. The pertinent sections of Title VII of the Civil Rights Act of 1964, as amended, provide: Section 701: (a) The term “person” includes one or more individuals, governments, governmental agencies, political subdi- VISIONS a (b) The term “employer” means a person engaged in an industry affecting commerce . . . (42 U.S.C. § 2000e) Section 703: (a) It shall be an unlawful employment practice for an employer (1) to fail or refuse to hire or to discharge any indi- vidual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise ad- versely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. (h) Notwithstanding any other provision of this title, it shall not be an unlawful employment practice for an employer . . . to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national origin. (42 U.S.C. § 2000e-2) STATEMENT OF THE CASE _ This is a consolidated case involving two actions. The first was brought by the Firefighters Institute for Racial Equality (FIRE) and certain individual black firefighters (Private Plain- tiffs) against the City of St. Louis, Missouri and certain City Officials, alleging violations of the Fourteenth Amendment, Title VII and 42 U.S.C. §§ 1981 and 1983 by inter alia, using a se- a a — = lection procedure for promotion to the position of Fire Captain which had a disproportionate impact on blacks. The second action was brought in the name of the United States of America also alleging violations of the Fourteenth Amendment, Title VII and 42 U.S.C. §§ 1981 and 1983. Intervenors are white fire- fighters who represent a class of 177 white firemen who have undergone testing and evaluation and who are currently on an eligibility list for promotion to the rank of Fire Captain. Pursuant to the Charter of the City of St. Louis, the City is required to give competitive examinations for positions in the Fire Department, including the position of Fire Captain. A\l- though the City had never attempted to validate its tests prior to the 1972 amendments to Title VII, it did hire an industrial psychologist, Dr. Lawrence O'Leary, in 1973 to develop valid selection procedures for the ranks of Fire Captain, Battalion Chief, Deputy Fire Chief and Fire Chief. A Fire Captain is a first line supervisor responsible for one piece of equipment and a crew of three or four other men. He leads his men at the scene of a fire, he is responsible for his crew's inservice training, and he performs inspections of buildings and has other administrative duties. See St. Louis Fire Fighters Ass'n Local No. 73 v. City of St. Louis, unpublished opinion of Missouri State Board of Mediation (February 23, 1977) (A. 58 at A. 61). Dr. O'Leary performed a detailed job analysis of each posi- tion and developed selection procedures for each rank. For the rank of Fire Captain, Dr. O'Leary used an experience and train- ing score (weighted 45% ), a service rating (weighted 10% ) and a written test (weighted 45%) (Court of Appeals, A. 3). He recommended a working test period (probation) to be graded on a pass-fail basis after implementation of an im- proved rating system. Since almost all candidates for promo- tion scored within a narrow range on both the experience and — training rating and on the service rating, the written test was the most significant factor in determining positions on the eligibility list. The written test was shown to have had a disparate effect on blacks. The mean score for blacks on the test was 69.72 while the mean for whites was 76.59. 25.5% of the blacks passed while 43.6% of the whites passed. A total of 453 per- sons took the test. Normally, 18 promotions to Fire Captain are made from each promotional list which is valid for two years from the date of certification (August, 1976 in this case), and the first black on the list was fifty-fifth. OPINION OF THE DISTRICT COURT With respect to the 1974 Fire Captain written examination, the trial court found that the test was content valid within the EEOC Guidelines on Employee Selection Procedures (410 F. Supp. 948 at 959, A. 43). The Court discredited the criti- cisms of Plaintiffs’ expert witness and found that the job analy- sis was carefully and thoroughly done, that the test item selec- tion was proper, and that the failure to include supervisory questions on the test was professionally sound, and further, that supervisory abilities would be tested in the working test period (410 F. Supp. at 954, 958-59, A. 33-34, 41-43). The Court held that a possible alternative for testing supervisory skills, the Assessment Center, was neither feasible nor required (410 F. Supp. at 955, 959, A. 33, 42). With respect to the other issues in the case, the District Court held on the basis of statistical evidence alone, that the entry level test was discriminatory. The City had attempted no vali- dation of that test. The Court found that Private Plaintiffs had net shown disparate impact with respect to the Battalion Chief and Fire Chief tests and that certain individual plaintiffs had not been discriminated against. Private discrimination in eat- ing arrangements, so-called “supper clubs”, was found to in- volve no illegal conduct by the City. OPINION OF THE COURT OF APPEALS With regard to the Fire Captain exam, the Court of Appeals agreed with the District Court that Dr. O'Leary had performed a thorough and complete job analysis. The Court held, how- ever, that there was a “fatal flaw” in that the findings in the job analysis were not reflected. in the test. “The Captain's exam admittedly failed to test the one major job attribute that sepa- rates a firefighter from a fire captain, that of supervisory abil- ity.” (Court of Appeals, A. 8, emphasis in original). The Court relied on the fact that a Fire Captain spends more time in supervision (43%) than in any other job function. This hold- ing was made in the face of the finding that of six tasks ranked, supervision was fourth in importance (Court of Appeals, A. 8). The Court cited as authority the 1974 American Psycholog- ical Assocation Standards for Educationa' and Psychological Tests for the proposition that “all or nearly all” important parts of a job must be tested to achieve content validity (Court of Appeals, A. 9). The Court concluded: The test is not content valid. In short, even a common sense concept of content validity, aside from EEOC and APA Standards, requires that an important and distin- guishing attribute be tested in some manner to find the best qualified applicants. Here, where the exam failed to test a job component comprising over 40 percent of the employee's time, the inference of discrimination has not been rebutted with a finding of the exam’s “job related- ness.” (Court of Appeals, A. 10, emphasis in original). On the other issues, the Court of Appeals affirmed the rul- ings of the District Court regarding the other tests and the alleged discrimination against certain individual plaintiffs. The Court disagreed with the trial court regarding the “supper clubs” and ordered the City to forbid the use of City facilities to any “supper club” which excluded firemen on the basis of their race. No appeal was taken as to the lower court's ruling on the entry level. REASONS FOR GRANTING THF WRIT 1. The Petition Presents an Important Unresolved Issue of Constitutional and Statutory Interpretation Affecting Every State and Political Subdivision Which Is an “Employer” Within the Meaning of Title VII. The question of whether the application of the “disparate impact” test of discrimination under the 1972 amendments of Title VII to the States and their political subdivisions in the field of employment practices was a proper exercise of con- gressional authority under Section 5 of the Fourteenth Amend- ment, is one with which the Supreme Court has not yet dealt. In Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), this Court de- cided that Congress could appropriately, in accordance with Section 5 of the Fourteenth Amendment, provide that back pay and awards of attorneys’ fees and costs against states be recovered from states in the face of a claim that the Eleventh Amendment bars such remedies. The Court, however, noted (Footnote 11) that the application of the substantive provi- sions of Title VII to the States was not being challenged. 427 U.S. at 456. That is precisely what is being challenged in this case. In National League of Cities v. Usery, 426 U.S. 833 (1976), the Court (while reserving the question of authority under the Fourteenth Amendment, 426 U.S. at 852, n. 17) held that Congress had no power under the Commerce Clause to inter- fere with the setting of minimum wages and hours of empioy- ees of state and local governments. The Tenth Amendment was cited in support of the Court's reasoning that there were limits on the authority of Congress to interfere with the in- tegrity of the States. If Congress cannot set minimum wages and hours of state employees, what right, if any, does Con- gress have to dictate who these employees shall be or what race, sex or religion they shall have? — Obviously, the Fourteenth Amendment plays some part in answering the above question. The extent of the role of Con- gress under Section 5 is what is now being put before the Court. Under the Fourteenth Amendment, a plaintiff must prove an act of intentional discrimination to prevail in a case of alleged discriminatory employment practices by a state or local government. Washington v. Davis, 426 U.S. 229 (1976). A determination of whether Congress has the power to dis- pense with the intent requirement of the Fourteenth Amend- ment in applying that amendment to the States through Title VII requires, as Petitioners view the question, a balancing be- tween the States’ rights preserved by the Tenth Amendment and the later limitation of those rights and corresponding in- crease in the power of Congress embodied in the Fourteenth Amendment. To the extent possible, there should be a har- monizing of these conflicting rights. The power of Congress, acting under Section 5 of the Four- teenth Amendment is undoubtedly broad as was held in Ex parte Virginia, 100 U.S. 339 (1880), and more recently in Katzenbach v. Morgan, 384 U.S. 641 (1966) and others. It seems to Petitioners, however, that Congress’ power to enforce the prohibitions of the Fourteenth Amendment is not appro- priately exercised when Congress applies a more stringent standard of discrimination to the States than the Constitution requires, especially in view of the rights of the States in deter- mining their own empluyment policies under the Tenth Amend- ment. In other words, Title VII is not “appropirate legisla- tion” to enforce the Fourteenth Amendment as it has been applied to the States. The importance of this question to state and local govern- mental employers is patent, and it has already been recognized by this Court in its grant of certiorari in Hazelwood School Dis- trict v. United States, 45 U. 8. Law Week 3463 (Jan. 11, 1977, No. 76-255). This case presents the virtually identical constitu- as thas tional issue. As applied to the instant case, a ruling that inten- tional discrimination must be shown would require reversal of the Court of Appeals and reinstatement of the judgment of the trial court at the Fire Captain level and would require a reversal of the District Court's judgment at the entry level as a matter of plain error. While plaintiffs attempted to prove intentional dis- crimination at trial, the evidence with respect to the Fire Captain exam shows not only no intent to discriminate but also an inten- tion to avoid discrimination. The evidence regarding the entry level only shows that blacks did not score as well as whites on the written test. They were in the past (since 1969), however, hired in proportion to their occurrence in the population (ap- proximately 40% ). Cf. Casteneda v. Partida, — U.S. —, 45 U.S. Law Week 4302 (March 23, 1977). Interestingly, since the decision in Washington v. Davis, supra, courts without any further guidance from the Supreme Court have been drawing contrary conclusions as to the effect of that case on causes of action brought under 42 U.S.C. §§1981 and 1983 and the Fourteenth Amendment which were also al- leged in this case. A double standard between Title VII and the other types of cases is sometimes established. (See Court of Appeals, A. 5.) For instance, in a case based on 42 U.S.C. $1983, a District Court, reconsidering its prior finding of dis- crimination held, “Applying the teachings of Washington v. Davis, it is now manifest that a racially discriminatory purpose or policy in making assignments and transfers must be shown in order to establish the Shield Club's claim that assignments are made within the C.P.D. in a discriminatory manner.” Shield Club v. City of Cleveland, — F. Supp. —, 13 FEP Cases 1373 at 1380 (N.D. Ohio, 1976). In another case, a court relied on Washington v. Davis to dismiss plaintiffs’ 42 U.S.C. §1983 claims but held that a test validated against performance in a training program was not sufficiently validated under Title VII and distinguished Washington v. Davis on the grounds that it was a 42 U.S.C. $1981 case. League of United Latin Ameri- can Citizens v. City of Santa Ana, — F. Supp. —, 13 FEP Cases 1019 (C.D. Cal., 1976). However, the Ninth Circuit subsequently held in another case that the validation standards for tests under 42 U.S.C. $1981 and Title VII are the same and that good faith was no defense in a 1981 action. Davis v. County of Los Angeles, — F.2d —, 13 FEP Cases 1217. at 1221 n. 13 and at 1223 n. 17 (9th Cir., 1976). On the other hand, the Seventh Circuit holds that different standards apply to Title VII cases than those based on the Fourteenth Amend- ment. U.S. v. City of Chicago, — F.2d —, 14 FEP Cases 462 (7th Cir., 1977). With regard to validation of tests against police academy performance the Court said: “Although the ap- plicability of the [Supreme] Court's holding [in Washington v. Davis) to cases arising under Title VII is not clear, even if a relationship between examination performance and police acad- emy performance would be enough to establish job-relatedness for Title VII purposes, we do not read the district court's opin- ion as expressing a finding that such a relationship exists.” (14 FEP Cases at 475, emphasis supplied). The Court reversed the District Court's finding of a constitutional violation. 13 FEP Cases at 478. Finally, in a case involving alleged sex discrim- ination in the Alabama Highway Patrol and Department of Public Safety, a three-judge district court held that different standards of discrimination apply in 1983 and Title VII cases. Mieth v. Dothard, — F. Supp. —, 13 FEP Cases 1412, at 1420 (M.D. Ala., 1976), probable jurisdiction noted — US. —, 45 US Law Week 3399 (Nov. 30, 1976). Petitioners respectfully submit that the Court should clarify the confused state of the law in this area and that if a double standard is to be applied, it should be a standard distinguishing between conduct of public and private employers rather than a double standard applied to public employers depending upon what statutory or constitutional violation is alleged. == {2 II. The Failure of the Court of Appeals to Consider the Con- stitutional Issue Raised on Appeal Is Such a Departure From the Accepted and Ordinary Course of Judicial Proceedings as to Call for the Exercise of the Supreme Court's Power of Super- vision. In footnote 5 of its opinion the panel of the Court of Appeals states in part: “Intervenors in this appeal . . . have strongly contested Congress’ power to dispense with the intemt require- ment in Title VII cases where state and local governments act as employers . . . In any event, the court determines that it need not reach this issue. Counsel for the Intervenors has ad- mitted under the court’s questioning that the constitutional issue was not raised below.” (Court of Appeals, A. 5, em- phasis in original). By failing to consider the substantial and important issue raised by Intervenors on appeal, the Court of Appeals has departed from its own precedent and the cases of this Court. A. It is generally recognized that in defending a judgment on appeal, a party may rely on any ground which supports the judgment. This was recognized by the Eighth Circuit in the recent case of Tiedeman v. Chicago, Milwaukee, St. Paul and Pac. R. Co., 513 F.2d 1267 (8th Cir., 1975), where the Court stated: “An appellee cannot attack a judgment either to enlarge his rights thereunder or to lessen the rights of his adver- sary unless he files a cross-appeal (citations omitted). However, an appellee may . . . defend a judgment on any ground consistent with the record . . . Here appellee does not attack the judgment in its favor rendered below. It merely asserts additional grounds for affirming the judg- ment.” 513 F.2d at 1272. In accord are Supreme Court decisions Dandridge v. Williams, 397 U.S. 471 (1970), note 8 at 475; and Jaffke v. Dunham, o>---- a> i MM ee ee OO oe — 352 U.S. 280 (1957) (“A successful party in the District Court may sustain its judgment on any ground that finds support in the record.” 352 U.S. at 281); and Eighth Circuit decisions Aetna Insurance Co. v. Eisenberg, 294 F.2d 301 (8th Cir., 1961); and Standard Accident Insurance Co. v. Roberts, 132 F.2d 794 (8th Cir., 1942). See also, 9 Moore's Federal Prac- tice © 204.11[13] (2nd Ed., 1975), at 932. On this basis alone the Court of Appeals should have considered the constitutional question raised. B. One exception to the general rule that an issue cannot be raised for the first time on appeal is a change in the controlling law after the trial court's decision and prior to determination on appeal. In the instant case, the District Court's decision was handed down on April 9, 1976. The Supreme Court did not decide Washington v. Davis, National League of Cities v. Usery and Fitzpatrick v. Bitzer until June 7, June 24 and June 28, 1976, respectively. Intervenors, citing these cases, suggested that they changed the law with respect to employment dis- crimination cases under Title VII and that the cases suggested the existence of a serious constitutional issue regarding the ap- plication of Title VII to the States. The Court of Appeals, how- ever, chose to ignore the issue because it was not raised below. This choice was contrary to its own prior decision in Johnson v. U. S., 434 F.2d 340 (8th Cir., 1970), where the Court stated: “While the general rule is that issues not raised before the trial court cannot be considered upon appeal, limited exceptions to such rule have been recognized. One such exception is a change in the controlling law subsequent to the triel court's decision and prior to the determination on appeal.” 434 F.2d at 342. In accord is the Supreme Court's decision in Hormel v. Helver- ing, 312 U.S. 552 (1941), where one of its own decisions inter- vened in the period between the ruling of the Board of Tax — 14— Appeals and the decisions of the Court of Appeals. The Su- preme Court very recently had no problem in applying its ruling in Washington v. Davis, supra, to a case where the issue of intentional discrimination was not considered controlling by either the trial court or the Seventh Circuit. Village of Arlington Heights v. Metropolitan Housing Development Corporation, .. . US. ..., 45 U.S. Law Week 4073 at 4078 (Jan. 11, 1977). Similarly, this Court has granted certiorari in the Hazelwood School District case, No. 76-255, where the Petition for Certio- because the cases relied on (Washington v. Davis and National League of Cities) had not been decided when the Court of Appeals ruled. Obviously, the cases relied on by Intervenors arguably created a change in the controlling law and therefore, the constitutional issue should have been dealt with by the Court of Appeals. C. Another exception to the general rule that an issue cannot be raised for the first time on appeal is a situation where an important issue of public policy is called into question. In the instant case, the constitutionality of the application of Title VII to the States is such an important public policy question. Pursuant to 28 U.S.C. §2106, appellate courts may modify, reverse or remand a lower court decision “as may be just un- der the circumstances.” The purpose of the existence of courts is to render justice and not to woodenly apply procedural rules to defeat this ultimate goal. In cases where substantial ques- tions of public importance have been raised for the first time on appeal, Courts of Appeals have exercised their discretion to consider such important questions. K-2 Ski Co. v. Head Ski Co., Inc., 506 F.2d 471 at 475 (9th Cir, 1974); Brennan v. Gilles Cotting, Inc., 504 F.2d 1255 (4th Cir., 1974); and O'Neill v. U. S., 411 F.2d 139 (30d Cir., 1969). In this case, the arguments of the Intervenors were fully briefed on the mer- its in the Reply Brief of the United States and none of the aed — a... -.. — = Appellants challenged these arguments on the basis that they were not presented to the District Court. The important con- stitutional question should have been answered and it was an abuse of discretion for the Court of Appeals to fail to reach that issue. Ill. The Decision of the Court of Appeals Is in Conflict With the EEOC Guidelines on Employee Selection Procedures and the Avowed Purpose of Congress in Enacting 42 U.S.C. §2000 e-2(h), as Recognized by This Court in Griggs v. Duke Power Co., of Allowing Rather Than Discouraging the Use of Profes- sionally Developed Ability Tests. A. In Griggs v. Duke Power Co., 401 U.S. 424 (1971), this Court gives a detailed analysis of the legislative history of Sec- tion 703(h) (42 U.S.C. §2000c-2(h)) and specifically holds that job-related tests were to be allowed. 401 U.S. at 433-436. “Nothing in the Act precludes the use of testing or meas- uring procedures; obviously they are useful. What Con- gress has forbidden is giving these devices controlling force unless they are demonstrably a reasonable measure of job performance. Congress has not commanded that the less qualified be preferred over the better qualified simply be- cause of minority origins. Far from disparaging job qual- ifications as such, Congress has made such qualifications the controlling factor, so that race, religion, nationality, and sex become irrelevant. What Congress has commanded is that any tests must measure the person for the job and not the person in the abstract.” (401 U.S. at 436, empha- sis supplied. ) The Court also stated that administrative interpretations of a statute by an enforcing agency are entitled to “great deference” —~ = “good reason to treat the EEOC Guidelines as expressing the will of Congress.” 401 U.S. at 434. The Courts of Appeals since Griggs, however, have split on how “great” the “deference” to be given to the Guidelines should be. The First and Second Circuits have developed a moderate approach which admits of the possibility of satisfying the job- relatedness standard of Griggs independently of the Guidelines. Vulcan Society v. Civil Service Commission, 490 F.2d 387, 394 (2nd Cir., 1973) and Castro v. Beecher, 459 F.2d 725, 737 (ist Cir, 1972). The Fifth Circuit at first appeared to recog- nize that the Guidelines should not be so rigidly applied that they would be absolute mandates, U.S. v. Georgia Power Co., 474 F.2d 906, 915 (Sth Cir., 1973) but it has later interpreted Georgia Power Co. to compel compliance with the Guidelines to achieve test validity. See Pettway v. American Cast lron Pipe Co., 494 F.2d 211, 221 (Sth Cir., 1974). The Sixth and the Eighth Circuits also appear to have adopted a strict compliance rule. EEOC v. Detroit Edison, 515 F.2d 301, 317 (6th Cir., 1975); Rogers v. International Paper Co., 510 F.2d 1340, 1345 (8th Cir., 1975). It can be forcefully argued that this Court's decision in Albermarle Paper Co. v. Moody, 422 U.S. 405, 431 (1975) requires strict adherence to the Guidelines. The prob- lem with this approach wa: pointed out in Justice Blackmun’s concurring opinion. “I fear that a too rigid application of the EEOC Guidelines will leave the employer little choice, save an impossibly expensive and complex validation study, but to en- gage in a subjective quota system of employment selection. This, of course, is far from the intent of Title VII.” 422 U.S. at 449 (Blackmun, J., concurring). The extent to which the Supreme Court will require strict ad- herence to the Guidelines, however, is subject to debate since the decision in Washington v. Davis, supra. There, for instance, the Court said: “It appears beyond doubt by now that there is —= = no single method for appropriately validating employment tests for their relationship to job performance . . .” (426 U.S. at 247 n. 13, citing 1966 APA Standards). The Guidelines had previ- ously been interpreted as requiring a criterion related validity study where this was “technically feasible.” 29 C.F.R. § 1607.5(a). See e.g. Douglas v. Hampton, 512 F.2d 976, 985 (D.C. Cir., 1975); and Bridgeport Guardians v. Civil Service Commission, 462 F.2d 1333, 1337 (2nd Cir., 1973). The Court in Washington v. Davis also held that a test validated against performance in a training program was sufficiently job-related to be valid. 426 U.S. at 250. This was farther than any other Court had gone in determining how job-related a test must be to be considered valid. The extent to which the EEOC Guidelines should be given deference is a question which is now also ripe for reappraisal. The teachings of this Court in Griggs, Espinoza v. Farah Manu- facturing Co., 414 U.S. 86 (1973); Washington v. Davis, and Gilbert v. General Electric Co., 429 US. 125 (1976); es- tablish that “deference” need only be given when adminis- trative interpretations of a statute are in accord with the statute's provisions and with the intent of Congress. As was pointed out above, the intent of Congress was to allow the use of employment tests. This suggests that “a more sensible con- struction of the job relatedness requirement” of the Guidelines should be used. See Washington v. Davis, 426 U.S. at 251. On July 14, 1976, the Equal Employment Opportunity Co- ordinating Council (EEOCC) published its “Uniform Guide- lines on Employee Selection Procedures”, 41 Fed. Reg. 29016, which were prepared prior to the decision in Washington v. Davis. These guidelines differ in significant respects from the EEOC Guidelines, especially with respect to the preference for criterion related validity, espoused by the Commission and re- jected by the Coordinating Council (compare 29 C.F.R. § 1607.5(a) with Uniform Guidelines §5, a, 41 Fed. Reg. 29018); with respect to use of validation techniques other than those set out in the Guidelines (See, Unform Guidelines § 3,b, 41 Fed. Reg. 29017); and with respect to what is required to demonstrate content validity. (Compare 29 C.F.R. §§ 1607.5 and 1607.6 with Uniform Guidelines §§ 12,c, (1)-(6) and 13,c, 41 Fed. Reg. 29424, 29021). The EEOC, which did not agree with the formulation of the Uniform Guidelines published by the Coordinating Council felt it necessary to republish its 1970 Guidelines in toto and unchanged on November 24, 1976. 41 Fed. Reg. 51984-51986. Even the Court of Appeals in this case read Washington v. Davis, as “undermining” a requirement of the E.E.0.C. Guidelines preferring criterion related validity to content validity. (Court of Appeals, A. 7.) Petitioners respectfully submit that this Court's recent pro- nouncements and the significant differences in the published guidelines of the governmental agencies responsible for the en- forcement of equal employment laws of the land seriously call into question the extent, if any, to which the courts should give deference to these guidelines. B. Regardless of the issue of “deference”, the decision of the Court of Appeals is in actual conflict with all the accepted published guidelines and standards for employment tests, and with the intent of Congress in Section 703(h). The Court, in fact, created its own standard, the “common sense concept of content validity” (Court of Appeals, A. 10) which it applied in the following manner: 1. The Fire Captain job requires that approximately 43% of his time be spent in “supervision.” 2. “Supervision” is rated fourth in importance among the various functions of a Fire Captain. 3. “Supervision” can't be tested for in a written test and would only be evaluated under Dr. O'Leary's selection system after the man was placed on the job. Ne ee ee —E— — = 4. Therefore, “Here, where the exam failed to test a job component comprising over 40 percent of the employ- ee’s time, the inference of discrimination has not been rebutted with a finding of the exam’s ‘job-relatedness.’ ” (Court of Appeals, A. 8-10). The finding of “job-relatedness” referred to by the Court was the holding of the District Court that: “The job analysis con- ducted herein convinces this Court that the areas tested suf- ficiently identify suitable candidates for promotion.” 410 F. Supp. at 959 (emphasis supplied, App. ...). The Court citing Bridgeport Guardians, Inc., supra, found support for the proposi- tion that a non-comprehensive written examination can be lega'ly used. This proposition has become the law in Washington v. Davis, 426 U.S. at 252. The District Court found the exam to be content valid and said: “Neither a perfect examination, nor an examination without a disparate impact is a necessity, where, as here, the employer has esiablished that the examination has been validated in accordance with recognized methods.” 410 F. Supp. at 959 (Emphasis supplied), A. 43. The Court of Ap- peals hela that “. . . it is this court’s opinion that an erroneous legal standard was applied in reaching that conclusion.” (that the test identified suitable candidates for promofion); (Court of Appeals, A. 10). Petitioners submit that it was the Court of Appeals and not the District Court which applied an erroneous legal standard. The evidence at trial established, the District Court found, and the Court of Appeals refused to challenge the finding that Dr. O'Leary's job analysis of the Fire Captain's job was “thorough and complete.” (Court of Appeals, A. 8, fn. 9). The Court of Appeals also refused to hold the exam invalid for the areas of job knowledges which it attempted to cover. (Court of Appeals, A. 13). The “fatal flaw” was that the test did not go far enough in that it did not test “supervisory” skills. (Court of Appeals, A. 8). (To the extent that the job analysis dem- onstrated that job knowledge was a mandatory prerequisite for = = performing a Fire Captain's functions, the written test did test “supervisory skills.” ) As was pointed out above, there is no requirement that a test be thoroughly comprehensive in order to be content valid. The EEOC Guidelines contain no such requirement. The Amer- ican Psychological Association's Standards for Educational and Psychological Tests and Manuals (1966), which are adopted by reference in the EEOC Guidelines and its recently repub- lished Guidelines §1607.5(a) (41 Fed. Reg. at 51985), con- tain no such requirement. The newer 1974 APA Standards for Educational and Psychological Tests (not “and Manuals”), which were not adopted by the EEOC and on which the Court of Appeals placed specific reliance, contain no such require- ment. Additionally, the 1974 Standards specifically provide: “A final caveat is necessary in view of the prominence of testing issues in litigation. This document is prepared as a technical guide for those within the sponsoring pro- fessions; if is not written as law. What is intended is a set of standards to be used in part for self-evaluation by test developers and test users. An evaluation of their compe- tence does not rest on the literal satisfaction of every rele- vant provision of this document. The individual standards are statements of ideals or goals, some having priority over others. Instead, an evaluation of competence depends on the degree to which the intent of this document has been satisfied by the test developer or user.” (1974 Standards at 8, emphasis supplied. ) Here the Court of Appeals treated the 1974 Standards as law and applied them more than literally. Further, the Uniform Guidelines of the Coordinating Council specifically allow the use of non-comprehensive tests which still may have content validity. See §12c(3) which provides in part, Where the do- main or domains measured are critical to the job, OR consti- tute a substantial proportion of the job, the selection procedure will be considered to be content valid for the job.” (41 Fed. —— ae Eee ~“ = = Reg. at 29020, emphasis supplied.) Here, the domains meas- ured are both critical to the job (“It was clear from the inter- views conducted that knowledge of fire fighting and inspection were considered to be very important.” 410 F. Supp. at 959, A. 42, emphasis supplied), and the areas tested constituted a substantial proportion (over 50% ) of the job. The portion of the 1974 APA Standards quoted and relied on by the Court of Appeals provides: “An employer cannot justify an employment test on the grounds of content validity if he cannot demonstrate that the content universe includes all, or nearly all, important parts of the job.” (Court of Appeals, A. 9, emphasis in Court's opinion. ) The Court ignored the disjunctive nature of the above-quoted language and required that the only important area not tested directly before piacing a man on the job. i.e., supervisory skills, also be tested in order for there to be content validity. This is contrary to the applicable law and guidelines and contrary to the intent of Congress that the use of tests be allowed. The Court of Appeals suggested the use of a very expensive selection procedure (the “Assessment Center,” about $500 per candidate estimated cost if done as for position of Fire Chief) which has been shown to successfully test supervisory skills. However, there was absolutely no evidence in the record that the use of an “Assessment Center” would have any less serious racial impact than the written test. In fact, a suit is now pend- ing in the Eastern District of Virginia where an “Assessment Center” was used for fire department promotions and it did have a disparate impact on blacks. Roscoe Friend, et al. v. City of Richmond, et al., Civil Action No. 74-0327R, Eastern District of Virginia, Richmond Division. It also appears that the Court of Appeals has placed more importance on the im- portance of supervisory skills than they carry with respect to the Fire Captain rank. See the opinion of the Missouri State Board of Mediation which included Fire Captains in the same collective bargaining unit with Fire Fighters. St. Louis Fire Fighters Ass'n, Local No. 73 v. City of St. Louis, unpublished opinion (February 23, 1977), at A. 64. The decision of the District Court that the 1974 written Fite Captain exam was content valid is in accord with the EEOC Guidelines, the 1966 and 1974 APA Standards, the new EEOCC Uniform Guidelines and the intent of Congress in enacting Section 703(h). In Griggs this Court said, “If an employment practice which operates to exclude Negroes cannot be shown to be related to job periormance, the practice is pro- hibited.” 401 U.S. at 431. Here the test has been demonstrated to be content valid, it is therefore “demonstrably a reasonable measure of job performance.” 401 U.S. at 436. Candidiates for promotion are measured for the job of Fire Captain and not in the abstract. CONCLUSION For the reasons stated above, this petition for writ of cer- tiorari should be granted. Respectfully submitted, JOHN H. GOFFSTEIN JEROME A. DIEKEMPER 130 South Bemiston Avenue Clayton, Missouri 63105 Attorneys for Petitioners Of Counsel: BARTLEY, GOFFSTEIN, BOLLATO & LANGE 130 South Bemiston Avenue Clayton, Missouri 63105 APPENDIX APPENDIX I United States Court of Appeals For the Eighth Circuit Nos. 76-1507 and 76-1663 Firefighters Institute for Racial | Equality, et al., Plaintiffs-Appellants, Vv. Appeal from the United States Dis- trict Court for the Eastern District of Missouri City of St. Louis, et al., Defendants-Appellees, United States of America, Plaintiff-Appellant, City of St. Louis, et al., Defendants-Appellees. Submitted: October 14, 1976 Filed: February 2, 1977 Before Lay, Ross and Stephenson, Circuit Judges. Ross, Circuit Judge. In this consolidated action, black firefighters and the Depart- ment of Justice allege the existence of racially discriminatory — ee practices in the St. Louis City Fire Department. In the first action the Firefighters Institute for Racial Equality (F.I.R.E.) and several named plaintiffs represent a class who are presently employees or who seek employment with the St. Louis Fire Department. The United States subsequently filed suit under Title VII of the Civil Rights Act of 1964 seeking redress for a “pattern or practice” of discrimination as well as for individuals not represented by F.I.R.E. Both actions were filed pursuant to 42 U.S.C. §§ 1981, 1983 and 2000e et seg. The principal defendant, the City of St. Louis, is joined in its argument by the Intervenors who represent a class of nonblack employees and candidates for employment in the fire department. Appeal is taken on a number of issues, but no appeal has been taken with respect to the examination for firefighter which is the entry level position in the fire department.' The F.I.R.E.-Ap- pellants do contest the City’s promotional practices with re- gard to the fire captain’s exam and the battalion chief's exam Also charged as unlawful are exclusion of blacks from fire- house eating arrangements known as “supper clubs,” and the failure to promote a black individual, George Horne, to a fire captain position. F.I.R.E. also contests the amount of attorney's fees which the district court indicated it would award. Of these issues, the United States appeals on only two: the promotional exam for fire captain and the supper club discrimi- nation issue. This court considers the latter as the principal claims, and reverses with respect to them. The district court is affirmed with respect to the battalion chief exam and in the matter of George Horne. ' The firefighter exam was shown to have had a disparate racial effect and was not violated. on June $8 and unc order 2 (June 28, 1976). The order was entered on June 28 1976 memorandum opinion which had included the parties partial pony doy died yd Pay oy une 28 the court an r pursuant to stipulation parties granting similar to the partial consent decree. The J rrserey ny efter ty Ay Ln AE J Ld, blacks in filling vacancies at the entry level over the next a | _—Y = Fire Captain's Examination The position of fire captain is the first level supervisory job in the St. Louis Fire Department. According to the findings of the district court, fire captains are responsible for the super- vision of a group of men and equipment on a particular work shift. The in-service training of the firefighters under his com- mand is a significant part of the fire captain's job. According to the City’s validation study, the fire captain leads his company at the fire scene. Promotion to the fire captain's position is dependent on a composite score developed from three measurements of an indi- vidual’s qualifications. For candidates on the 1974 eligibility list which is at issue here, the “written test” was given a 45 weight as was an “experience and training score.” The “service rating” score was weighted as 10 percent of the com- posite. Attaining the rank of fire captain is a highly sought-after and competitive goal of both blacks and whites. From the 1974 the eligibility list. The highest ranking black man ranks as num- ber 55 out of a total of 189 on the lh... As a prerequisite for The experience and training score, which comprised 45 per- cent of the total score, is also a function of length of service with the fire department. According to the district court, points 2 —_ye are awarded for each month of experience with the department. In 1974 all applicants with ten or more years experience re- ceived the maximum score of 45 points. Eighty-one percent of those who made the 1974 eligibility list for the captain's posi- tion received the maximum number of points for experience and training. While the experience and training score is largely quantita- tive, the “service rating” is qualitative, and reflects the indi- vidual’s last supervisory rating prior to announcement of the written exam. On this measurement of qualification, 93 percent of the persons on the eligibility list received scores in the narrow range between 7.8 and 9.2. At tral Dr. O'Leary, the City’s test analyst and expert wit- because he felt that experience on the job and the quality of that experience were important factors in evaluating potential fire - ee De CC —_v presented established that the test had a disparate impact on blacks.* It is a distinguishing feature of a Title VII cause of action that discriminatory impact suffices to establish a prima facie showing of discrimination. The recent case of Washington v. Davis, 426 U.S. 229, 239 (1976) establishes that a law or official act is not unconstitutional solely because it has a racially disproportionate impact regardless of whether it reflects a racially discriminatory purpose. However, Congress statutory standard for Title VII, where discriminatory purpose need not be proved, is unshaken by the Washington decision. /d. at 246-47.° It is now a familiar principle that Title VII was not meant 1 | 7 | : —_v a U.S. 405, 425 (1975). Accepted professional methods of “vali- dating” exams ‘or their job-relatedness are found in the EEOC Guidelines published in 29 C.F.R. § 1607.5 (1975). The Su- preme Court has said of these test validation techniques: The EEOC Guidelines are not administrative “regulations” promulgated pursuant to formal procedures established by the Congress. But, as this Court has heretofore noted, they do constitute “[t)he administrative interpretation of the It is also true that in this case Dr. O'Leary, the City’s expert who developed and validated the test, purportedly considered omitted). See also, . New . 1 Sers., 520 F.2d 420, 426 (2d Cir. 1975); Vulean Soc’y of New York City Fire ., Inc. v. Civil Serv. Comm'n, 360 F Supp. 1265, (S.D.N.Y. 1973). et. A. th CO. Oe —_ —S Predictive validation requires a comparison between an appli- cant’s test scores and subsequent on-the-job performance as an employee; concurrent validation methods correlate the test scores of present employees vis-a-vis their present job perform- ance. Vulcan Society of New York City Fire Dept. v. Civil Service Commission, 490 F.2d 387, 394 (2d Cir. 1973). These empirical methods are, of course, dependent on statistical cor- relations as proof of reliability and validity. Content validity, the technique chosen by Dr. O'Leary for justification of the fire captain's exam, generally requires that the examination reflect a representative sample of the knowledge or behavior that will be used in performance of the job. The F.1.R.E.-Appellants have argued on this appeal that a content validity study should not have been undertaken by the City and that type of test should be used only when a criterion- related study has proved to be technically infeasible.’ This argument is now undermined by the Supreme Court's recent observation in Washington v. Davis, 426 U.S. 229 (1976), that “[i}t appears beyond doubt by now that there is no single method for appropriately validating employment tests for their relationship to job performance.” /d. at 247 n.13 (emphasis added). Although in this court's opinion content validation, if properly done, could be an acceptable means of evaluation for the City to undertake, it is no more acceptable than a criterion-related test, especially if such criterion-related test in- —_y formed. The district court concluded, and this Cov,. does not challenge the finding, that Dr. O'Leary's analysis »>f the fire captain's job was thorough and complete.” It is in fact the fatal flaw in the validation study that the test Dr. O'Leary devised did not reflect his findings in the job analysis. The captain's exam admittedly failed to test the one major job attribute that separates a firefighter from a fire cap- tain, that of supervisory ability. From the interviews conducted for the job analysis, the City’s expert determined that almost 43 percent of a fire captain's time was spent in supervision, a higher percentage of time than on any other single element. Of the six tasks ranked as the “most important,” supervision was fourth. There was no attempt to test supervisory skills * Twenty-seven fire captains were interviewed i = ee cement of Gt bb andl cas Gee abies | ce. Capains importance. dents of the job, and the essential and desirable qualities of a fire captain. A pool of questions for the exam were obtained through the Inter- national Governmental Personnel Associauion; accord- ing to Dr. O , a Series of items ane Se Sp Cena were also i . Questions on the exam were accord- ing to the importance of cach area of . The best items ‘© = m . o See United States v. City of St. Louis, 410 F.Supp. 948 Mo. 1976). Dr. Barrett's main to the job was that in his the of job activities and levels were incom- He also pees, Cae Se Sagas ean. interview technique, and of information used by O'Leary were reasonable Considering the district court's the lower court's conclusion about the job analysis. Compare the job analysis in this case with the cursory in Vulcan Soc’y of New whan The EEOC Guidelines accept evidence of content validity for tests “that consist of suitable samples of the essential knowl- edge, skills or behaviors composing the job in question.” 29 C.F.R. § 1607.5(a) (1975) (emphasis added). Similarly, the APA Standards, which the EEOC Guidelines refer the reader to, clearly warn that: An employer cannot justify an employment test on grounds of content validity if he cannot demonstate that the con- tent universe includes all, or nearly all, important parts of the job. AMERICAN PSYCHOLOGICAL ASSOCIATION, STAND- ARDS FOR EDUCATIONAL AND PSYCHOLOGICAL TESTS 29 (1974) (emphasis added). It is clear that this court's objection to this test is similar to the objections of other courts. In a decision where Blacks and Hispanics challenged the content validity of a correction offi- cer’s exam, the court also questioned the test’s lack of com- prehensiveness: More serious perhaps than specific item flaws is the fact that, regardless whether 34-944 adequately tests the at- tributes it is intended to measure, it fails to examine a number of traits, skills and abilities which witnesses for both sides singled out as important to the Sergeant job. Among these are leadership, understanding of inmate re- socialization, ability to empathize with persons from dif- ferent backgrounds, and ability to cope with crisis situ- ations. Kirkland v. New York State Dept. of Correctional Services, 374 F.Supp. 1361, 1378 (S.D.N.Y. 1974), aff'd in relevant part, 520 F.2d 420 (2d Cir. 1975). In Vulcan Society of New York City Fire Department, Inc. v. Civil Service Commission, supra, 360 F.Supp. at 1274, aff'd, 490 F.2d 387 (2d Cir. 1973), the court quite simply stated: “[ajn examination has content va- = Aptian lidity if the content of the examination matches the content of the job.”'® Though the district court was “convinced” from the job analysis that the “areas tested sufficiently identify suit- able candidates for promotion,” it is this court's opinion that an erroneous legal standard was applied in reaching that con- clusion. The job analysis here may have appeared impressive in relation to those challenged in other cases, but a good analysis in any situation is of little use when the examination fails to reflect what is found in the job analysis. The test is not content valid. In short, even a common sense concept of con- tent validity, aside from EEOC and APA Standards, requires that On important and distinguishing attribute be tested in some manner to find the best qualified applicants. Here, where the exam failed to test a job component comprising over 40 percent of the employee’s time, the inference of discrimination has not been rebutted with a finding of the exam's “job-relatedness.” Both experts agree that there is no good pen and paper test for evaluating supervisory skills. In his validation study Dr. O'Leary had anticipated that supervisory ability would be judged after an employee had been selected and placed on the job through the use of a “six month working test period.” Accord- ing to the validation study, the individual's supervisory abilities would be “closely scrutinized” and his performance evaluated on a pass/fail basis. Whatever merit this idea may have as a means of eliminating unfit employees after they are chosen, it aoe ene “It is essential that the examination test t attributes in ion to their relative importance on the job and atthe level of dificulty demanded by the Jo 360 F. Supp. at 1274. See also Douglas v. Hampton, 512 F.2d 976 (D.C. Cir. 1975). “ ‘Content’ validity is established when the content of the test closely approximates the tasks to be ormed on the job by the cant.” Jd. at 984 (emphasis ) (footnote omitted). See also Bridgeport Guardians, Inc. v. Members of Bridgeport Civil Serv. Comm'n, 482 F.2d 1333, 1338 (2d Cir. 1973). Dr. O'Leary said at trial: “Content validity is validity demonstrated when one can sumtabae Deaaace i * * * are very close to the content j person is going to be orming.” (Em- phasis added ). 2 — Ss — ES ES ——— —_< cannot substitute for a valid selection method utilized at the outset to fairly pick the best employees in a nondiscriminatory manner. The many who are not picked for the “working test period” obviously have no opportunity to compete or to raise their rank by a demonstration of their ability. Significantly, the City’s director of personnel testified that though the work- ing test portion has “always existed” he did not know whether a fire captain had ever been eliminated because of his perform- ance during that period. Used in this manner, the probation- ary period would prove even less valuable as a means of se- lection. Both experts also testified at trial concerning an excellent method of supervisory evaluation known as the Assessment Cen- ter technique. Dr. O'Leary had himself used it for the deputy and fire chief examination in St. Louis, labeling it as “one of the most effective methods” available. He described the Assess- ment Center as a selection procedure which uses individual and group exercises that simulate job responsibilities while asses- sors evaluate a candidate’s performance. The Assessment Cen- ter was apparently rejected for choosing fire captains because of the large number of persons who wish to take that test. The evidence indicates that the assessment technique takes at least one day and costs as much as $500 per person. Dr. Barrett, who is enthusiastic about this approach as well, has suggested a means for reducing the expense through the use of a content valid screening test. As the court understands his testimony, the written test would be a screening device only, eliminating those persons who obviously did not possess the requisite job knowledge to perform at the captain's level. The Assessment Center could then be used to rank those persons who successfully complete the written exam. Dr. Barrett, how- ever, also testified that this cutoff score would need to be rela- tively low. As Dr. Barrett testified, another possible screening device is performance ratings given from the lower level job. : — A-i2 — This court clearly does not have enough evidence in the record or testing expertise to devise a complete remedy for testing supervisory skills using the Assessment Center or any other method. Other courts have dealt with the problem and in similar causes of action concerning invalid exams have di- rected “executive or administrative officials to live up to their responsibilities and to prepare and conduct an examination con- sonant with the Fourteenth Amendment.” Vulcan Society of New York City Fire Dept., Inc. v. Civil Service Commission, supra, 360 F.Supp. at 1278. Other courts have also dealt with the necessity of testing supervisory skill where that attribute was critical. In affirming the district court’s rejection of New York City’s exam for school principals, the court of appeals said: The [district] judge did not outlaw other written examina- tions or indicate that none could be created to test more fairly the qualities necessary for a supervisory job. It may well be that new testing procedures will be devised by the parties themselves and be approved by the district court. Chance v. Board of Examiners, 458 F.2d 1167, 1179 (2d Cir. 1972) (footnotes omitted ). This court will take the same general approach of urging the parties on remand to devise a test of supervisory skills to be approved by the district court. The one caveat is that the final test must be validated in accordance with the published EEOC Guidelines. This may be accomplished by devising a content valid test or by a concurrent criterion-related validity test. The Assessment Center is a concededly good device, but the court will not at this point require that approach to be the sole method finally used. Whatever test is used should provide equal reliability and validity. Because of the difficulty of de- vising a test properly reflecting the supervisory skills of the ap- — A-13 — plicants, it is possible that a criterion-related concurrent valida- tion test coupled with a limited use of the Assessment Center would meet the guidelines. Cost to the City is one factor which may be considered in deciding whether to use the Assessment Center technique,'' but it may not be the sole deciding factor. The district court shall have continuing jurisdiction until a valid exam is devised by the parties to these cases, if possible, and may require reports or take evidence on testing procedures as it deems necessary. The final plan will be subject to that court’s approval. Both appellants also argue that the test has a number of “flawed items” which invalidate the written exam even for the areas of job knowledge it has attempted to cover. At trial Dr. Barrett had criticized many of the individual questions that were used on the test.'* Tnough Dr. Barrett gave examples of each of his specific criticisms, his testimony does not render the trial court clearly erroneous. When asked if each item on a test had to be valid in order for the whole test to be valid, he replied that it did not. He previously admitted not having made a study of the entire fire captain's exam to determine the total number of poor and unrelated questions. This court agrees that some improvement could be made in this area. 11 Jf a screening device is used in conjunction with the Assess- ment Consee, Gpalanment of a fair cutoff score is obviously im- portant. The EEOC Guidelines provide: It is expected that each operational cutoff score will be reason- able and consistent with normal expectations of proficiency within the work force or group on which the study was con- ducted 29 C.F.R. § 1607.6 (1975). 12 Dr. Barrett objected to “tenuous linkage” in some questions, questions where a correct answer did not guarantee adequate per- formance on the job; and questions that gave a um to the test-wise individual. Other items, he said, called for “esoteric in- formation” not related to job performance. — A-14— Supper Clubs The second principal claim concerns the exclusion of blacks from the “supper clubs.” Supper clubs are informal eating arrangements among on-duty firefighters at firehouses in the St. Louis Fire Department. Cooking facilities, stove, refrigera- tor, and cabinets for storage, are provided by the City for the use of its on-duty personnel. Each supper club provides for its own utensils and condiments and buys food for the shared meals. A cook is chosen, who the district court found, “has the discretion and authority to determine who is a member of the club.” The clubs are not organized or regulated by the Fire Department. As a finding of fact the district court concluded that blacks have been excluded from many of these clubs. These exclusions, the court found, frequently result in blacks, where a minority in a firehouse, cooking and eating apart from their white associates. The district court felt that such segregation was “offensive” and “incomprehensible” but concluded that because no Fire De- partment directive or order promoted the exclusivity, the court would not intervene. The district court did indicate that if the problem persisted it would seek a solution. The existence of segregated supper clubs was accepted as a fact by the district court and that fact is accepted here. This court as well finds the exclusion of black co-workers by whites highly offensive, and regards the situation as one which the Fire Department could remedy by appropriate regulations. In Rogers v. Equal Employment Opportunity Commission, 454 F.2d 234, 238 (Sth Cir. 1971), cert. denied, 406 U.S. 957 (1972), the court in determining tl.at the Commission possessed “the statutory authority to investigate psychological fringes in an employment relationship,” discussed the scope of Title VII's authority to alleviate race discrimination: — A-15 — This language evinces a Congressional intention to define discrimination in the broadest possible terms. Congress chose neither to enumerate specific discriminatory prac- tices, nor to elucidate in extenso the parameter of such nefarious activities. Rather, it pursued the path of wisdom by being unconstrictive, knowing that constant change is the order of our day and that seemingly reasonable prac- tices of the present can easily become the injustices of the morrow. Time was when employnient discrimination tended to be viewed as a series of isolated and distinguish- able events, manifesting itself, for example, in an em- ployer’s practices of hiring, firing, and promoting. But today employment discrimination is a far more gomplex and pervasive phenomenon, as the nuances and subtleties of discriminatory employment practices are no longer con- fined to bread and butter issues. As wages and hours of employment take subordinate roles in management-labor relationships, the modern employee makes ever-increasing demands in the nature of intangible fringe benefits. * * * * * * Therefore, it is my belief that employees’ psycho- logical as well as economic fringes are statutorily entitled to protection from employer abuse, and that the phrase “terms, conditions, or privileges of employment” in Section 703 is an expansive concept which sweeps within its protective ambit the practice of creating a working environment heavily charged with ethnic or racial discrimination. * * * One can readily envision working environments so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers, and I think Section 703 of Title VII was aimed at the eradication of such noxious practices. See also Wilson v. Woodward Iron Co., 362 F.Supp. 886, 896 (N.D. Ala. 1973). The language in Rogers is apposite to the situation in this case. — A-16 — The City provides the cooking facilities in each firehouse for use by its on-duty personnel as part of their employment; it is clear that city officials have been made aware of the segregated eating arrangements in the firehouses for sometime and have protested their inability to solve the problem to the district court. On remand of this case to the district court, that court should renew the interest it had indicated it had in an ongoing review of the supper club problem by supervising the Department's promulgation of new regulations. Those regulations should pro- vide that use of city facilities by supper clubs may not continue in a discriminatory and segregated manner. In other words the supper clubs may not use City kitchen facilities if they refuse membership to blacks. In this way the City may comport with its duty to provide a nondiscriminatory working environment; additionally, the inclusion of blacks and the reduction of racial tension in firehouses cannot help but aid the City as an employer where the job at hand requires the close cooperation of its em- ployees and a concerted team effort. Battalion Chief's Exam and the Matter of George Horne The F.I.R.E.-Appellants have appealed the district court's decision that a prima facie case of racial discrimination was not shown with respect to the use of the battalion chief's examina- tion. We affirm. It is undisputed that results from the exam showed no disparate racial impact. Two of the three blacks who took the examination passed it and at least one will be appointed to the higher level supervisory position. F.I.R.E. ar- gues, however, that a comparison of the racial composition of the employment pool with the lack of black battalion chiefs clearly suffices for a prima facie showing of racial discrimina- tion. This argument is rejected. In Carter v. Gallagher, 452 F.2d 315, 323 (8th Cir. 1971) this court held that demo- graphical “([s}tatistical evidence can make a prima facie case of eS ees a —_Y discrimination” in a situation where an all white 535 man Fire Department operated in a large city with a 6.44 percent black population. In St. Louis, eleven percent of the existing force is black, and blacks will be hired at a 50 percent rate on the entry level pursuant to the district court's order. In the case on which F.L.R.E. makes its primary claim for support, the court used census figures to supplement “meager exam statistics” which had shown a racial disparity. See Boston Chapter N.A.A.C.P., Inc. v. Beecher, 504 F.2d 1017, 1020 (Ist Cir. 1974). This is obviously not the case here. Likewise, the district court is affirmed in the matter of George Horne. The district court found that a union official had written a letter to Mr. Horne in which he told him that six vacancies would be available. The district court also found that a Deputy Chief had told Horne he would speak to the Fire Chief concern- ing a promotion. However, only four new fire captains were requisitioned by the Fire Department at that time, eliminating Horne from consideration prior to the expiration of the cligi- bility list. . F.1.R.E. points to no evidence which suggests that racial dis- crimination was the Department's motive in making a request for four new captains. In fact, George Horne was sixth on the eligibility list, and a white man who was fifth and would precede Horne was also passed over for promotion. As a final matter, St. Louis has raised the issue of whether or not the district court erred in not dismissing the suit brought by the United States under 42 U.S.C. §§ 2000e-5(f) and 2000e- 6(b). It is the City’s contention that the United States could only participate in this suit as an intervenor, that to bring their own suit is duplicative and contrary to the intent of the statute. The United States argues that St. Louis is precluded from raising this issue because of failure to cross-appeal; that the suit by the — A-18 — United States is brought on the basis of 47 charges filed with the EEOC, 30 of which were not included in the F.LR.E. com- plaint; that the United States also proceeded under the pattern and practice authority of § 2000e-6 on behalf of the “public interest” and accordingly. presents policy considerations dif- ferent from those preseuted by private litigants; and finally that the consolidation of the cases provides an equivalent practical effect. We agree with each of the reasons advanced by the United States, (with the exception of the second reason) and, in view of the consolidation of the cases for trial, and the fact that F.LR.E. raised the same questions as the United States on appeal, we do not consider our determination to be in conflict with EEOC v. Missouri Pacific Railroad Co., 493 F.2d 71 (8th Cir. 1974). A question is also raised concerning the jurisdiction of the district court to enter its nunc pro tunc order of June 28, 1976.'* Without passing on this question we direct that at the time the listri estadiction of the a 1 it should reenter its order as of that date. Also at that time the district court should award appropriate attorney's fees to F.1.R.E. for work prior to this appeal. The court had previously indicated it was without jurisdiction to do so after an appeal was taken. Attorney's fees under Title VII may be awarded pursuant to 42 U.S.C. § 2000e-5(k). The fees awarded in this case, both on remand and upon completion of the balance of the case, should be in a fair and reasonable amount in accordance with twelve guidelines set by the court in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (Sth Cir. 1974). In our opinion the award of $3,000 suggested by the trial court is grossly inadequate under these guidelines for work done prior to appeal. '* See note |, supra. - - eee ee ee ee - — A-19 — Accordingly, the judgment of the district court is affirmed in part, and reversed and remanded in part for further proceed- ings consistent with the views expressed in this opinion. Attor- ney’s fees for this appeal will be awarded to F.1.R.E. upon submission of affidavits relating to the guidelines described in Johnson v. Georgia Highway Express, Inc., supra, 488 F.2d 714. A true copy. Attest: Clerk, U. S. Court of Appeals, Eighth Circuit. —_r United States Court of Appeals for the Eighth Circuit 76-1507 Firefighters Institute of Racial Equal- ity, etc., et al., Appellants, VS. The City of St. Louis, Missouri, etc., et al., Appellees. 76-1663 United States of America, Appellant, vs. The City of St. Louis, Missouri, etc., et al., September Term, 1976 Appeals from the United — States— Dis- ‘ trict Court for the Eastern District of Missouri. Appellees. | The Court having considered petition for rehearing en banc filed by counsel for intervenors-appellees and, being fully ad- vised in the premises, it is ordered that the petition for rehearing en banc be, and it is hereby, denied. Considering the petition for rehearing en banc as a petition for rehearing, it is ordered that the petition for rehearing also be, and it is hereby, denied. February 25, 1977 ee ee ewe — A-21 — APPENDIX Ill United States Court of Appeals for the Eighth Circuit 76-1507 ; Firefighters Institute of Racial Equal- ity, etc., et al., Appellants. vs. The City of St. Louis, Missouri, etc., et al., September Term, 1976 Appeals from the United States Dis- Appellees. > trict Court for the The City of St. Louis, Missouri, etc., et al., Appellees. / Eastern District of Missouri. Petition of appellees for rehearing fiiled in these appeals hav- ing been considered, it is now here ordered by this Court that the same be, and it is hereby, denied. - February 25, 1977 — A-22 — APPENDIX IV United States District Court Eastern District of Missouri Eastern Division United States of America, ) Plaintiff, . No. 74-200 C (4). City of St. Louis, et al., Defendants. Firefighters Institute for Racial ) Equality, et al., Plaintiffs, VS. > No. 74-30 C (4). City of St. Louis, et al., Defendants. / ORDER (Filed April 9, 1976) Pursuant to the memorandum filed this date, It Is Hereby Ordered, Adjudged, and Decreed that defend- ants shall have judgment against plaintiffs, and that these causes be and are dismissed at plaintiffs’ costs. /s/ JOHN F. NANGLE United States District Judge Dated: April 9, 1976 " — A-23 — United States District Court Eastern District of Missouri Eastern Division United States of America, > Plaintiff, = . No. 74-200 C (4). City of St. Louis, et al., Defendants. _ Firefighters Institute for Racial \ Equality, et al., Plaintiffs, VS. . No. 74-30 C (4). City of St. Louis, et al., Defendants. | MEMORANDUM (Filed April 9, 1976) Plaintiffs brought these actions pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq., and 42 U.S.C. §§1981 and 1983. These cases were tried before the Court sitting without a jury. The Court having considered the pleadings, the testimony of the witnesses, the documents in evidence, the stipulations of the parties, and being otherwise fully advised in the premises, hereby makes the following findings of fact and conclusions of law as required by Rule 52, Federal Rules of Civil Procedure: ao 496 a= Findings of Fact 1. Plaintiff, Firefighters Institute for Racial Equality, Inc. is a not-for-profit corporation, organized under the laws of the State of Missouri. Plaintiff, Preston Sims, is a black citizen of the United States, resident of the City of St. Louis, Missouri. Plaintiff Sims was denied employment by the Fire Department, based in part at least upon his failure to pass a written test which was given as a prerequisite for employment by the St. Louis Fire Department. Plaintiffs, George Baker, Robert D. Morgan, Robert Grady, Sherman George, George Redford Turner, Lawrence L. Britt, Vernon Ammons, Wendell H. Goins, Charles Gay, George E. Horne, William L. Young, Daniel S. Austin, Robert Anderson, John H. Harvey, Joseph P. Hughes, and Eugene Stanton are all black citizens of the United States, and residents of the City of St. Louis. All are presently em- ployed by the St. Louis Fire Department. The Attorney Gen- eral has brought suit on behalf of the United States. 2. Defendant City of St. Louis is a municipality incorpo- rated pursuant to the laws of the State of Missouri and is a political subdivision of that State. Defendant Division of Fire and Fire Prevention is one division within the Department of Public Safety of the City of St. Louis. It operates all firefight- ing facilities of the City of St. Louis. Defendant Frank C. Cum- mings is the Acting Chairman of the Civil Service Commission of St. Louis. Defendants Fred Gould and Charles Marino are members of the Civil Service Commission. Defendant Joseph B. Clark is the Director of the Department of Public Safety of the City of St. Louis. Defendant Charles Kamprad is the suc- cessor to the originally named defendant Denis Broderick, who subsequently retired as Chief of the Fire Department. Defend- ant R. Elliott Scearce is the Director of the Department of Per- sonnel for the City of St. Louis, responsible for establishing eligibility lists for employment and promotion by the Fire De- partment. _— ne —————EE——OeeeEOEEEEOOeEEEEUECOeEEEEEEeEEEEEEEEEEEEE EE a — A-25 — 3. Intervenor Michael Davis is a non-black employee of the City of St. Louis who has applied for employment with the St. Louis Fire Department. He has a position on both the promo- tional hiring list and the open competitive hiring list. Inter- venors Edwin David Banta and George Hohman are members of a class of 177 non-black firefighters, all of whom have under- gone testing for evaluation and promotion to the rank of Fire Captain and all of whom are on the current eligibility list for such promotion. Intervenors Donald Blackwell, Nick Altmeyer and George Tschlis are members of a class of 100 non-black Fire Captains, all of whom have undergone testing and evalu- ation for promotion to the rank of Battalion Chief and all of whom are on the current eligibility list for such promotion. 4. The Fire Department of the City of St. Louis is a division of the Department of Public Safety of the City of St. Louis. The Director of the Department of Public Safety, Mr. Joseph B. Clark, is an appointee of the Mayor. The Fire Chief is re- sponsible to the Director of the Department of Public Safety. The Fire Chief is responsible for the day-to-day operation and policies of the department. Under the Fire Chief are the Deputy Fire Chiefs, responsible for the management of the department in its day-to-day functions. The Deputy Fire Chiefs each su- pervise one-third of the Fire Department's personnel, as each is assigned to one of the three shifts. The Deputy Fire Chiefs respond to any and all major alarms of fire. The City of St. Louis is divided, for the purposes of the Fire Department, into seven districts. In charge of each district is the Battalion Chief, who reports to the Deputy Fire Chief. The Battalion Chief has supervision over approximately eight companies, the number varying depending upon the size and fire hazards within each district. The Battalion Chief is responsible for the companies, including the men, officers, equipment, houses, and the fire safety of the individuals and property located within the district. The Fire Captain serves below the Battalion Chief. The Fire Captains work in shifts and are responsible for the men and — A-26 — equipment under their supervision. The Fire Captain is also responsible for the training of individuals under his supervision. 5. The rank structure of uniformed personnel in the St. Louis Fire Department, in ascending order of rank, is Firefighter, Fire Captain, Battalion Chief, Deputy Chief, and Fire Chief. 6. As of November 30, 1974, there were approximately 1,000 uniformed personnel employed in the St. Louis Fire Department, of whom approximately 110 (11%) were black. 7. Applicants for the entry level position of firefighter are required to be residents of the City of St. Louis on their date of application. 8. On November 30, 1974, there were approximately 180 persons in the rank of Fire Captain, of whom 4 (2.2%) were black. No black has ever held a uniformed position in the Fire Department above the rank of Fire Captain. 9. In the period since November 30, 1964, 95 whites and 1 black have been promoted to the position of Fire Captain. The black was Daniel Austin, promoted to Fire Captain on May 22, 1966. 10. Pursuant to the provisions of the City Charter, appoint- ments to the entry level position of Firefighter, and promotions to higher positions within the Fire Department, are made from eligibility lists prepared by the Personnel Department of the City of St. Louis. The Personnel Department, in response to a requisition for personnel made by the Fire Department and approved by the Director of Public Safety and the Budget De- partment, certifies to the Fire Department, in order of rank from the appropriate eligibility list, a number of persons equal to the number of vacancies to be filled, plus two. The Fire De- partment then appoints from those certified the persons it wishes to fill the vacancies. een es ee ee er Pe eet ee ee en ee OO —_< = 11. In certifying persons for the entry level position of Fire- fighter, the Personnel Department first certifies, in order of rank, persons from an eligibility list of qualified applicants who are then permanent city employees (the promotional list). After that list is exhausted, certification is made in order of rank from a list of all other qualified applicants (the open competi- tive list). 12. An eligibility list expires two years from the date it is established, or when it is pre-empted, whichever is sooner. In the period since November |, 1964, eligibility lists for the entry level position of Firefighter were established on October 15, 1974; September 28, 1971; March 6, 1969; October 31, 1966; and November 6, 1964. Since January 1, 1962, eligibility lists for the position of Fire Captain have been established in 1962, 1964, 1967, 1969, 1971, and 1974. Eligibility tests for the rank of Battalion Chief were established in 1967, 1969, 1971, and 1974. Entry Level Positions 13. All persons appointed to the entry level position of Fire- fighter are required to complete successfully a probationary period of up to one year, including an initial training course in firefighting. Of the 307 persons appointed to the entry position of Firefighter since November 30, 1964, 3 have been termi- nated for inability to perform satisfactorily the duties of a Fire- fighter. 14. In 1969 ranking on the open competitive eligibility list was based on the applicant's scores on a written test, a physical strength and agility test and an evaluation of the applicant's experience and education. Minimum passing scores were es- tablished for the written and physical tests. Those attaining passing scores on the written and physical tests were ranked on the eligibility list, with the results weighed as follows: 50% — A-28 — on the written test; 35% on the physical test; and 15% on the education and experience evaluation. 15. In 1971 and 1974, ranking on the oper competitive eli- gibility list was based on the applicant's score on a written test and on a physical strength and agility test, with a minimum passing score established for each test. The results of each test were weighed 50% in the ranking. 16. The mean scores for blacks and whites on the written examination for the entry level position utilized in 1974 were approximately 56.70 and 71.95 respectively. The approximate mean scores attained by blacks and whites on the physical agility test administered in 1974 were 51.24 and 49.13 re- spectively. 17. Seven hundred thirty-four persons took the written test for the entry level position in 1974, of whom 267 (36.4%) were black. The cut-off score utilized in 1974 for placement on the eligibility list eliminated approximately 51% of the black applicants and 25% of the white applicants who took the two examinations. 18. The current promotional and open competitive eligi- bility lists contain 26 and 360 mames, respectively. Eight (30.8%) of the 26 persons on the promotional list are black. Eighty-one (24.3%) of the 334 persons on the open competitive list (not counting those persons also on the promotional list) are black, including 10 (10%) of the first 100 persons. 19. On June 16, 1975, the parties agreed, with the consent of the Court, to allow the City of St. Louis, its officers and agents, to proceed with the hiring of individuals for the entry level position in accordance with the terms of a “Partial Con- sent Decree” which is incorporated herein. See Appendix A. — A-29 — Fire Captain Position 20. For the examinations for the position of Fire Captain, for the eligibility lists established in 1962 through 1965, and in 1974, applicants were required to have served at least five years in the position of Firefighter or above. For the exami- nation for the position for the lists established in 1967 through 1971, applicants were required to have served seven years in the position of Firefighter or above. The increase in the required number of years of service from five to seven years was made on the recommendation of an outside consultant hired by the Fire Department. The decrease for the 1974 eligibility list from seven to five years required service was also made on the advice of an outside consultant. 21. From 1962 through 1971, ranking on the eligibility list for Fire Captain was determined by a written test, an experi- ence and training score, and a service rating. These scores were weighed as follows: 45% on the written test; 40% on the ex- perience and training score; and 15% on the service rating. 22. Ranking on the eligibility list for Fire Captain for 1974 was determined as follows: written test score weighed 45%; experience and training score weighed 45% and service rating weighed 10%. 23. Applicants for the position of Fire Captain were required to meet minimum requirements for experience and service rat- ings, and achieve a minimum passing score on the written exami- nation in order to be ranked on the eligibility list. 24. The experience and training score of the applicants in 1970 and 1974 was determined by the positions held in the Fire Department in the ten years preceding the application. Points in the final ranking were awarded for each month of experience. In 1974, all applicants with ten or more years experience re- ceived 45 points. Applicants with the lowest experience and — A-30 — training score received 31.5 points. One hundred fifty-four (81%) of the 189 persons on the 1974 eligibility list for Fire Captain received the maximum 45 points for experience and training. 25. The service rating score for applicants in 1971 and 1974 was based on the last supervisory rating received by the appli- cart prior to the cut-off date on the examination announcement. Applicants who made the minimum scores on the other parts of the examination for the position of Fire Captain received from seven to ten points for service ratings in the final ranking on the eligibility list. One hundred seventy-six persons (93%) of the total 189 persons ranked on the 1974 eligibility list re- ceived between 7.8 and 9.2 points for service ratings. 26. The mean scores for black and white applicants on the written test for Fire Captain in 1974 were 69.72 and 76.59 respectively. Forty-seven blacks and 406 whites took the 1974 written examination. Twelve blacks and 177 whites achieved u passing score on the examination. Twelve of the 189 persons (6.3% ) on the current eligibility list for Fire Captain are black, with the highest ranked black on the list ranked at number 55. 27. Only approximately 18 persons will be promoted from the 1974 eligibility list. Battalion Chief 28. For the examinations for Battalion Chief for the eligibility lists established in 1962 through 1965, and in 1974, applicants were required to have served at least five years in the position of Fire Captain or above. For the examination for Battalion Chief for the eligibility list established in 1967 through 1971, applicants were required to have served at least eight years in the position of Fire Captain or above. 29. As stated above, there are currently only 4 black Fire Captains. Of the 3 black Fire Captains who took the 1974 ~. — A-31 — Battalion Chief Exam, 2 passed. One of those two has a suf- ficiently high ranking that appointment is possible. An adverse impact on blacks has not been established. Deputy Chief and Fire Chief 30. There is simply no evidence from which to conclude that the examinations for these positions have an adverse impact on blacks. 31. Plaintiffs oppose the time-in-grade requirement for these positions. Although time-in-grade requirements have been in- creased in the past, they have been lowered to the original re- quirement in the recent past. Any adverse impact suffered from the increase is no longer in existence. Selection Procedure 32. It is clear that the differences found in performance by blacks and whites on the Firefighter written examination and the Fire Captain examination are statistically significant. 33. Prior to the effective date of Title VII, as amended to include state and local governments (March 24, 1972), the City of St. Louis made no attempt to validate any of the written tests or other standards or requirements utilized in the selection of persons for entry level or promotional positions in the St. Louis F ..e Department. 34. In the spring of 1973, the City of St. Louis hired an outside consultant, Dr. Lawrence O'Leary, to develop a proper selection device. 35. Dr. O'Leary's report indicates that the content valida- tion approach was used in devising the selection procedure be- cause (a) the possibility of collusion by applicants existed, mak- — A-32 — ing the use of an identical test from year to year undesirable: and (b) because the number of promotions per eligibility list is small, it would be difficult to rely on evidence of a predictive nature derived from small samples. In addition, the lack of valid criteria for work performance precluded the use of a criterion related validity study. 36. Dr. O'Leary proceeded to conduct a job analysis for the position of Fire Captain and Battalion Chief. The methods used for the analysis of the two jobs were essentially the same. Cap- tains, and Battalion Chiefs, were selected at random from each of the districts. Lengthy interviews of up to two hours were conducted. Twenty-seven Fire Captains were interviewed as was one Battalion Chief from each district. 37. The interviews asked for a complete specification of all components of the job, critical incidents, and qualities con- sidered to be necessary or desirable for satisfactory performance of the job. The information obtained was then summarized by tabulating the number of times each different component was mentioned, its ranking in importance by each person interviewed; and the percentage of time spent on each component. 38. Dr. O'Leary made a decision to increase the length of the Fire Captain's examination, from 100 to 125 questions, to achieve higher reliability. He also decided not to measure skills, abilities and personal characteristics, but only the knowledge re- quired for the job. This decision was made because of the un- desirability of measuring such items in a paper-and-pencil test. 39. Questions on the examinations were distributed among the knowledge areas required, in accordance with the areas’ im- portance. Questions from which the test was constructed were obtained from the test exchange service of the International Government Personnel Management Association from questions constructed specifically for the tests by researchers. Questions were checked for their applicability to the City of St. Louis. —————————_——————— — A-33 — The best questions were selected. These questions were then shown to the Fire Chief and a Deputy Fire Chief for their ap- proval. The questions were selected after passing the following aacfies a) approved by at least two members of the three-man validation task force as job related; b) acknowledged to be job related by an expert panel of technical advisors from the Fire Department, ¢) judged to have the least number of words necessary to successfully convey the meaning of the question. The last criteria resulted from a determination that in prior examinations, minority candidates had difficulty with the longer questions. 40. Dr. O'Leary suggested that supervisory skills, which could not feasibly be included in a written examination, be tested during the working test period. 41. Dr. O'Leary recommended a range within which to establish a cut-off score. The cut-off score chosen, 78, was within the range. 42. Of the 189 persons on the eligibility lists, only a small fraction will actually be appointed during the life of the list. 43. Another possible method of testing for promotions is the Assessment Center approach. Because of the large num- ber of candidates, however, the costs of utilizing such an ap- proach would be prohibitive. The estimated cost was $500.00 per candidate. 44. Dr. Richard Barrett, plaintiffs’ expert, raised various criticisms of the examination. Dr. Barrett, however, had never performed a content validity study for a fire department. had not made any study of the knowledge and skill required for the jobs of Fire Captain and Battalion Chief, and had not —_<* even studied any manuals relating to the skills and knowledge needed. Dr. Barrett approved of the use of the working test period and service ratings. He conceded that budgetary con- siderations would have to be given weight in devising a selec- tion procedure. Although critical of 10 of the 125 questions, Dr. Barrett stated that not every question on the examination needed to be content valid for the test itself to be valid. He further conceded that there had never been a perfect exam- ination. 45. While the Court is aware of Dr. Barrett's credentials in the field, the Court concludes that his opinions herein are not entitled to credence. He was not at all familiar with the jobs involved. His criticisms of the examination amounted to no more than nit-picking. Dr. Barrett was critical of only a small portion of the examination and yet was of the belief that not every question needed be valid in order for the test itself to have validity. His conclusion, that the examination lacked validity, was not supported even by his own testimony. In sum, Dr. Barrett was not an impressive witness herein. Supper Clubs 46. The evidence establishes that Fire Department person- nel have established supper clubs on a very informal basis for the benefit of club members, at the various firehouses. There is mo evidence tying or connecting any one club with any other. The members contribute money for the expenses of utensils and food. One member is the cook, who has the dis- cretion and authority to determine who is a member of the club. 47. The cooking facilities themselves belong to the Fire Department. The utensils, however, are the property of the supper clubs. i A — A-35 — 48. There is evidence that blacks have been excluded from many of these clubs. There is no evidence, however, to indi- cate that the exclusions were anything more than the indi- vidual decisions of some white firemen not to dine with black firemen: these decisions were not the result of any Fire De- partment directive or order. These exclusions frequently result in blacks, where a minority in a firehouse, cooking and eating apart from their white associates." 49. The problem created by the supper club obviously ex- acerbates racial tensions and as such, runs counter to the poli- cies of the laws of this country. Yet should a federal court issue some type of mandatory order to each firehouse setting out regulations relating to buying food, preparing it, serving it and eating it? The answer seems obvious. The Director of Public Welfare, Joseph Clark, testified that the problems with the supper clubs were coming vacer control. Mr. Clark, who himself is black, pledged all his efforts to eradicate this rep- rehensible practice from the St. Louis Fire Department. This Court believes that, at this time, it is inadvisable to involve itself in these supper clubs. In the event that this problem persists and remains without improvement six months from this date, the Court will reconsider this issue and seek specific proposals from city officials and the parties. Overt Discrimination 50. George Horne applied for, and was examined for, pro- motion to the position of Fire Captain in 1969. After the ex- amination, he was ranked twenty-first on the 1969 eligibility list. $1. In the spring of 1971, the Director of Public Safety met with officials of the local firefighters union, and agreed to end the delay in filling Fire Captain vacancies. 1 This t of segregation is both offensive and incomprehensible in groups very survival depends upon togetherness. — A-36 — 52. Thomas Vetter. a vice-president of the union, surveyed the Fire Department for vacancies. He found that six vacan- cies existed and so notified Horne of this fact by a letter post- marked August 13, 1971. At that time, Horne was sixth on the list. 53. Alfred Newman, a Deputy Chief of the Fire Depart- ment, told Horne that he would speak with the Fire Chief concerning an appointment to Fire Captain. 54. On August 31, 1971, the Department issued a requisi- tion for only four Fire Captains. Therefore, Horne was not appointed. Shortly thereafter, the 1969 eligibility list expired. 55. On December 13, 1971, the Fire Department issued a requisition for four Captains to be appointed from the 1971 eligibility list. That requisition form indicates that two of the positions as Fire Captain had been vacated by death and res- ignation on September 21, 1971 and July 17, 1971 respec- tively. 56. The Court is unable to find that Horne was denied pro- motion because of his race. The requisition form is signed by Denis Broderick, who was the Fire Chief and appointing au- thority. There is no indication in the record that either Thomas Vetter, a union official or Alfred Newman, a Deputy Fire Chief, had the authority to determine the necessary number of Fire Captains, and requisition the same. Nor does there appear to be a requirement that all vacancies in a position be filled as soon as they appear. Budgetary considerations could well have forced the Fire Chief, assuming that there were in fact six vacancies, to request only four appointments. There is no evidence from which to conclude that the Fire Chief confirmed the fact of six vacancies. Under these circumstances, the Court cannot find that Horne was denied promotion be- cause of his race. 57. There is absolutely no evidence from which to conclude that Preston Sims was denied employment because of his race. —_s Conclusions of Law This Court has jurisdiction over the subject matter and of the parties to this action. Defendants’ and intervenors’ objections to the presence of the United States as plaintiff herein are with- out merit. See 42 U.S.C. § 2000e-5(f) (1). As has been frequently stated, Title VII of the Civil Rights Act, 42 U.S.C. § 2000¢e et seq., . . . proscribes not only overt discrimination but also prac- tices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited. Nothing in the Act precludes the use of testing or measur- ing procedures; obviously they are useful. What Congress has forbidden is giving these devices and mechanisms con- trolling force unless they are demonstrably a reasonable measure of job performance. Griggs v. Duke Power Co., 401 U.S. 424, 431, 436 (1971) (emphasis added). The statistical evidence presented establishes that the tests in- volved had a disparate impact on blacks. Accordingly, the de- fendant City must establish that the tests are a “reasonable measure of job performance.” See also, Boston Chapter, NAACP, Inc. v. Beecher, 504 F.2d 1017 (1st Cir. 1974), cert. denied, 421 U.S. 910 (1975) (means of selection must be substantially related to job performance); Castro v. Beecher, 459 F.2d 725 (1st Cir. 1972 (there must be a fit between the qualifications and the job; Douglas v. Hampton, 512 F.2d 976 (D.C.Cir. 1975) (the test must bear a demonstrable relationship to successful job performance); United States v. Georgia Power Company, 474 F.2d 906 (Sth Cir. 1973) (manifest relationship between the test and the job is required). — A-38 — There are various means of establishing the relationship be- tween the examination and job performance. The preferred method of test validation is criterion-related or empirical validity, which includes what are referred to as the predictive and concurrent methods of validation. Predictive validation consists of a comparison between the examination scores and the subsequent job performance of those applicants who are hired. If there is a sufficient correlation between test scores and job performance, the examination is considered to be a valid or job related one. Concurrent validation requires the administration of the examination to a group of current employees and a com- parison of their relative scores and relative performance on the job. An examination has content validity if the content of the examination matches the content of the job. Tor a test to be content valid, the aptitudes and skills required for suc- cessful examination performance must be those aptitudes and skills required for successful job performance. It is essential that the examination test these attributes both in proportion to their relative importance on the job and at the level of difficulty demanded by the job. Vulcan Society of New York City Fire Department, Inc. v. Civil Service Com- mission of the City of New York, 360 F.Supp. 1265, 1273- assem 1973), modified, 490 F.2d 387 (2nd Cir. ). See also, Boston Chapter, NAACP, Inc. v. Beecher, 371 F Supp. 507 (D.C. Mass. 1974), aff'd, 504 F.2d 1017 (1st Cir. 1974) cert. denied, 421 U.S. 910 (1975); Douglas v. Hampton, ougie: Bridgeport Guardians, Inc. v. Members of the Bridgeport C ivil Service Commission, 482 F.2d 1333 (2nd Cir. 1973), cert denied, 421 U.S. 991 (1975). } The Guidelines of the Equal Employment Opportunity Com- mission authorize the use of a content validation approach — A-39 — “where criterion-related validity is not feasible.” 29 C.F.R. $ 1607.5. Dr. O'Leary stated that criterion-related validity was not possible in the present context. Such validation was not feasible because of the lack of valid criteria for work perform- ance, the small number of persons promoted from each eligibility list and the possibility of collusion. Predictive validation, con- sisting of a comparison between test scores and job performance, raises an additional problem, not mentioned by Dr. O'Leary. Defendants herein were required by law to establish a valid selec- tion procedure. Such a duty was an immediate one. Predictive validation of necessity requires a great deal of time since pre- sumably the applicants must be given a sufficient orientation period in the jobs before their performance is analyzed against their examination scores. See Commonwealth of Pennsylvania v. Glickman, 370 F.Supp. 724, 732 (D.C. Pa. 1974). But de- fendants had the duty to establish a valid selection procedure immediately. If the predictive validation approach were used, a test would have to be constructed, persons chosen for positions on the basis of the results of that test, and at a later date, analyses of their performance made. If the test were found not to be valid, the process would have to begin again. This Court is unable to find authority for granting an employer an exemption from the requirements of the law while a validation study is underway. It is the Court's conclusion that predictive validation would not be feasible and the Court is of the opinion that a con- tent validity approach was the only feasible approach in the pres- ent context. While the Equal Employment Opportunity Commission Guide- lines are entitled to great deference, Albemarle Paper Co. v. Moody, 43 U.S.L.W. 4880 (1975), it is worth noting that the Guideline requirement that the content validity approach be used only when the other methods are not feasible has been dis- puted by the Courts. In Vulcan Society of New York City Fire Department, Inc. v. Civil Service Commission of the City of New York, 360 F.Supp. 1265, 1273-74 (D.C.N.Y. 1973), — A-40 — modified, 490 F.2d 387 (2nd Cir. 1973), the experts involved were of the opinion that concurrent validation was less desir- able than predictive validation “because of the possibility that some distortion may result from either the experience or lack of motivation of the current employees who participate in the examination for experimental purposes.” /d. at 1273. See Vulcan Society of the New York City Fire Department, Inc. v. Civil Service Commission of the City of New York, 490 F.2d 387 (2nd Cir. 1973) (today’s preferred method may be rejected tomorrow); Kirkland v. The New York State Department of Correctional Services, 374 F.Supp. 1361, 1371 (D.C.N.Y. 1974), modified, 520 F.2d 420 (2nd Cir. 1975) (a content- valid examination will not be set aside simply because the other methods of validation were not used). The required burden that the employer must meet is not one of compelling interest or lack of feasible alternative, Chance v. Board of Examiners, 458 F.2d 1167 (2nd Cir. 1972); Castro v. Beecher, 459 F.2d 725 (Ist Cir. 1972), but simply that there is a substantial relation- ship between the scores and job performance. Having found that Dr. O'Leary was justified in choosing the content validation approach, the Court must now determine if the examination is valid. In order to be valid, the content of the examination must match the content of the job. In Vulcan Society, supra, 490 F.2d at 396, the court stated If an examination has been badly prepared, the chance that it will turn out to be job-related is small. Per contra, care- ful preparation gives ground for an inference, rebuttable to be sure, that success has been achieved. A principle of this sort is useful in lessening the burden of judicial exami- nation-reading and the risk that a court will fall into error in umpiring a battle of experts who speak a language it does not fully understand. See also Kirkland v. New York State Department of Correctional Services, 520 F.2d 420 (2nd Cir. 1975). This Court is not — A-41 — holding that plaintiffs must rebut an inference created by Dr. O'Leary's qualifications. Nonetheless, it is important to note that the examinations involved were the result of careful and extensive research. In many of the cases cited to this Court, such was not the case. See e.g., Boston Chapter, NAACP, Inc. v. Beecher, supra (the test was not professionally developed nor had there been any analysis of the required job skills); Fowler v. Schwarzwalder, 351 F.Supp. 721 (D.C. Minn. 1972), rev'd on other grounds, 498 F.2d 143 (8th Cir. 1974) (no attempt made to relate the relative importance of job duties or to cor- relate the same to the number of test questions; no systematic or empirical review of the elements of the job); Kirkland v. New York State Department of Correctional Services, 374 F.Supp. 1361, modified, 520 F.2d 420 (2nd Cir 1975) (inadequate job analysis); Western Addition Community Organization v. Alioto, 340 F.Supp. 1351 (D.C.Cal. 1972), appeal dismissed as moot, 514 F.2d 542 (9th Cir. 1975) (no job analysis per- formed ). To prove that an examination has content validity, _. . defendants must demonstrate not only that the knowl- edge, skills, and abilities tested for by [the examination] . . , coincide with some of the knowledge, skills and abilities required successfully to perform on the job, but also that 1) the attributes selected for examination are critical and not merely peripherally related to successful job perform- ance; 2) the various portions of the examination are ac- curately weighted to reflect the relative importance to the job of the attributes for which they test, and 3) the level of difficulty of the examination matches the level of diffi- culty for the job. Kirkland v. The New York State Depart- ment of Correctional Services, 374 F.Supp. 1361, 1372, modified, 520 F.2d 420 (2nd Cir. 1975). It is clear from the facts that Dr. O'Leary's analysis and exami- nation comported with these requirements. The job analysis — A-42 — was thorough and complete. The questions were distributed among the areas of knowledge required in accordance with the importance given to the area by the persons interviewed. The Court is aware of case law indicating that “all or substantially all the critical attributes” of the job must be included in the examination. Kirkland, supra at 1372. Plaintiffs herein con- tend that the examination is invalid because certain skills, such as supervisory skills, were not included in the written exami- nation. Nonetheless, the Court concludes that the examination was valid. Even plaintiffs’ own expert approved the use of the working test period, during which time supervisory skills could be more adequately evaluated. He also approved of the use of service ratings. The Equal Employment Opportunity Com- mission Guidelines themselves impliedly recognize the use of written and evaluative examination. See 29 C.F.R. § 1607.13. Furthermore, there is support in the law for the use of non- comprehensive written examinations. See Bridgeport Guardians, Inc., supra. The job analysis conducted herein convinces this Court that the areas tested sufficiently identify suitable candi- dates for promotion. It was clear from the interviews conducted that knowledge of fire fighting and inspection were considered to be very important. The Court further concludes that the cut-off score was validly established. The Equal Employment Opportunity Commission Guidelines require that the “cut-off score will be reasonable and consistent with normal expectations of proficiency within the work force or group. . .”. 29 C.F.R. § 1607.6. It was clear from the evidence that only a few persons from the eligibility list would be promoted. Under such circumstances, the Court can not conclude that the cut-off score was unreasonable, or inconsistent with the required criteria. Even plaintiffs’ expert conceded that a perfect examination is not possible. A perfect test is a goal “as illusory as perfect —_—Y schools or perfect courts . . .”. Boston Chapter, NAACP, Inc., supra, 504 F.2d at 1022. The Court concludes that the exami- nation had content validity. This is all that the law requires of an employer. Neither a perfect examination, nor an ex- amination without a disparate impact is a necessity, where, as here, the employer has established that the examination has been validated in accordance with recognized methods. The exami- nation for Fire Captain meets the criteria established by law. The Court has found that there was no evidence of a disparate impact in connection with the examinations for Battalion Chief, Deputy Chief and Fire Chief. Accordingly, the burden of estab- lishing that those examinations were valid does not shift to the employer. See Griggs v. Duke Power Co., supra at 431. The Court has found that the exclusions of blacks from the supper clubs was not the result of any actions by defendants, but instead the result of private decisions by individual fire per- sonnel. Under such circumstances, defendants have not violated any statutory duties. Because of the tensions created by the situation, however, the Court will request that defendants do all that they can to eradicate the problem, and will allow plain- tiffs to return to Court should the situation persist. The parties are in dispute as to the meaning of a certain aspect of the partial consent decree. That decree requires the St. Louis Fire Department to establish a racial composition that approximates the racial composition of the City of St. Louis as a whole. The issue disputed is whether the reference group should be the total uniformed personnel of the Fire Department (approximately 1,000 persons) or the total number of Fire- fighters (approximately 750 persons). It is the Court's con- clusion that the latter figure shall control. The terms of the partial consent decree provide that it shall remain in effect until, after a period of five years from the date of entry, defendants move that it be dissolved. —_— The Court has found that the examination for Fire Captain was properly validated as required by law. Plaintiffs failed to provide a disparate impact as the other promotional examina- tions. The evidence failed to established that either George Horne or Preston Sims were denied promotion or employment because of their race. Similarly, the evidence failed to establish that the exclusion of blacks from the supper clubs were the re- sult of any actions by defendants. Accordingly, judgment will be entered for defendants. /s/ JOHN F. NANGLE United States District Judge Dated: April 9, 1976. — A-45 — APPENDIX A In the United States District Court for the Eastern District of Missouri Eastern Division United States of America, Plaintiffs, ss | Civil Action No. 74C #4 City of St. Louis, a municipal corpora- ' tion, et al., Defendants. | Firefighter’ Institute for Racial Equality, et al., Plaintiff, | Civil Action No. “ - 74-200 C (4) City of St. Louis, Missouri, et al., Defendants. j PARTIAL CONSENT DECREE The United States filed its complaint herein on March 18, 1974, alleging that the defendants were engaged in a pattern and practice of discrimination based on race in hiring for and promotion within the City of St. Louis Fire Department (known formally as the Division of Fire and Fire Prevention of the De- partment of Public Safety) in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., as amended by the Equal Employment Opportunity Act of 1972, Public Law 92-261 (March 24, 1972) and the Fourteenth Amendment to the Constitution of the United States, 42 U.S.C. § 1981, and 42 U.S.C. § 1983. =f thas Plaintiffs’ Firefighters Institute for Racial Equality, et al., consisting of FIRE and 10 named individuals filed suit on Janu- ary 11, 1974, alleging inter alia, discriminatory practices on part of defendants in their hiring and promotion practices within the fire department of the City of St. Louis. Because of the identity of issues involved, the two cases were consolidated by the Court on March 17, 1975 with the assent of the parties. It now appears to the Court that the parties have waived a hearing and findings of fact and conclusions of law on those issues raised by the complaint relating to the initial employment of blacks to the position of firefighter, and have agreed to the entry of this partial Consent Decree, which shall in no manner constitute findings on the merits of the case nor be construed as an admission by defendants of any violation of Title VII or of rights guaranteed by the Fourteenth Amendment, 42 U.S.C. $ 1981 and 42 U.S.C. § 1983. All issues raised by the com- plaint with respect to the promotion of blacks and their terms and conditions of employment within the Fire Department are reserved for hearing and adjudication by this Court. Therefore, it is hereby ORDERED, ADJUDGED, and DECREED: 1. Inasmuch as it is a matter of policy and of law for the City of St. Louis not to engage in any act or practice which has the purpose or effect of discriminating against any employee of or any applicant or potential applicant for employment with the City of St. Louis Fire Department because of such indi- vidual’s race or color, it hereby consents to the entry of an order permanently enjoining such conduct, and defendants are so or- dered and enjoined. This does not constitute an adju [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1782%3A1. Public record. Not legal advice.